CERCLA cost recovery and environmental compliance

Environmental Compliance with CERCLA

The term “Superfund” refers to contaminated sites identified by the US Environmental Protection Agency (EPA) for cleanup. While this term captures the essence of the Superfund designation, the laws and regulations associated with environmental compliance and the identification, cleanup, and repurposing of Superfund sites are numerous and often complex. For those involved with Superfund cleanup efforts or litigation, an understanding of these laws can clarify how responsible parties are identified and held accountable, as well as how cleanup efforts are undertaken. A basic understanding of Superfund processes and policies can aid all parties as they embark upon the legal and logistical journey of Superfund site designation, cleanup, and repurposing.

The History of Superfund Sites and Environmental Compliance

CERCLA cost recovery and environmental compliance

CERCLA cost recovery and environmental compliance

In the late 1970s, the American public became increasingly aware of the risks to human health and the environment posed by contaminated sites. These sites include thousands of locations throughout the US where hazardous waste was dumped, left out in the open, or improperly managed. The most common sites of contamination include manufacturing facilities, processing plants, landfills, and mining sites. 

The EPA instituted a program in 1980 wherein funding and logistical assistance were directed toward “Superfund” sites that required cleanup and repurposing. When a contaminated site is designated as a “Superfund” site, the EPA becomes responsible for organizing and executing the cleanup process. The Superfund program also compels the responsible parties to perform cleanup or to reimburse the government for cleanup performed by the EPA. Superfund’s goals are to:

Periodically, the EPA updates the list of Superfund sites designated for cleanup. The National Priorities List (NPL) was updated in March 2022 to include 12 additional sites. According to EPA Administrator Michael S. Regan, “The EPA is building a better America by taking action to clean up some of the nation’s most contaminated sites, protect community health, and return contaminated land to safe and productive reuse for future generations.”  The NPL, which includes both new and proposed Superfund sites, is updated periodically and published in the US Federal Register

CERCLA: the Law that Created the Superfund Program

The US Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980. Under this law, the chemical and petroleum industries were taxed, and the EPA was granted broad authority to respond directly to releases of hazardous substances that may endanger human health or the environment. CERCLA is informally referred to as Superfund.

In 1986, Congress amended the Superfund program to reflect the EPA’s experience in administering it due to the complexity of each case. Several important additions were made that included:

  • emphasis on permanent remedies and innovative treatment technologies in cleaning up hazardous waste sites
  • requiring Superfund actions to consider the standards and requirements found in other State and Federal environmental laws and regulations
  • providing new enforcement authorities and settlement tools
  • increasing state involvement in every phase of the Superfund program
  • increasing the focus on human health problems posed by hazardous waste sites
  • encouraging greater citizen participation in making decisions on how sites should be cleaned up
  • increasing the size of the trust fund (secured through taxing the chemical and petroleum industries) to $8.5 billion

Amendments to CERCLA also required the EPA to ensure an accurate assessment of the risk to human health and the environment posed by hazardous waste sites included on the NPL. After six years of overseeing the cleanup of toxic sites, the EPA refocused its efforts on the human and environmental costs posed by Superfund sites and sought to better integrate affected communities into remediation efforts. 

Post-amendment, CERCLA authorized two kinds of response actions: short-term removals, where measures are taken to address releases or threatened releases that require a prompt response, and long-term remedial response actions. These actions permanently reduce the dangers associated with releasing hazardous substances that are serious but not immediately life-threatening. An example of long-term remediation is ongoing in the English Avenue District, a west side Atlanta neighborhood, where high concentrations of lead were found in the soil. The site was included in the March 2022 NPL update.

The Superfund Process

When a site is included on the NPL, a process begins that affects all those associated: site owners and operators, associates of site owners, community members and organizations, and the legal teams representing these entities. The cleanup and remediation processes are complex and occur in phases:

  • preliminary assessment/site inspection
  • national priorities list (NPL) site listing process
  • remedial investigation/feasibility study
  • records of decision (remedy decisions)
  • remedial design/remedial action
  • construction completion
  • post-construction completion
  • national priorities list deletion
  • site reuse/redevelopment 

The reuse and redevelopment phase of these projects seeks to incorporate community input and to make former Superfund sites into productive resources for communities. To this end, the EPA offers training and professional development for community members who seek to be included in the remediation efforts. In addition, at many Superfund sites, community members form a Community Advisory Group (CAG). These groups serve as the focal point for the exchange of information among the local community and the EPA, the State regulatory agency, and other pertinent Federal agencies involved in the cleanup of the Superfund site. A CAG provides a public forum for community members to represent their specific needs and concerns throughout the cleanup and remediation process. A CAG can assist the EPA in making better decisions on how to clean up a site.

Reuse and Redevelopment

The final stage of the Superfund process—Site Reuse/Redevelopment—is itself a long process that involves many stakeholders. Ideally, the outcome of Superfund remediation and cleanup is that communities can reclaim and reuse formerly contaminated land. The EPA, in partnership with CAGs and other stakeholders, employs an array of tools, partnerships, and activities to facilitate new opportunities for growth and prosperity. 

The EPA also provides resources for potential buyers of Superfund sites to ensure ongoing redevelopment, including a Prospective Purchase Inquiry Service, which provides crucial information to potential buyers, sellers, and other stakeholders to inform their decisions about purchase and redevelopment. Resources are provided to local governments and community members as well; each of these parties to the process is entitled to transparent information about how Superfund sites are to be managed and to contribute to the conversation about their future uses. 

The Importance of Historical Research

Professional historians assist stakeholders throughout the many steps involved in the designation, cleanup, remediation, and redevelopment of Superfund sites. As skilled investigators in factual research, historians can trace the details associated with site contamination into the past, determine responsible parties, and present these findings to lawyers and other stakeholders. Professional historians at History Associates Inc. (HAI) have extensive experience investigating environmental claims and acting as subject matter experts. They use forensic historical research methods to determine the allocation of environmental cleanup costs and can assist lawyers throughout the litigation process. 

The thorough recovery and documentation of Superfund site historical records aid all parties involved in Superfund designation and resulting actions. Contact the professional historians at HAI today to discover how experts in historical research provide valuable assistance in the journey toward Superfund site redevelopment.

 

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